Vorenberg writes on Page 425: “If we are to lay some of the blame for the shortcomings of Reconstruction at the feet of the law, we should be careful to lay it at the feet of judges, not at the feet of the people and their elected officials who created the text of the law.”
How does he reach this conclusion?
Constitutional Law (Powers) Spring 2019 
Vornberg critique of reconstruction is not of the newly added 13th , 14th and 15th amendment, rather of the judicial interpretation of the time. The judicial interpretation of the time re-established the dominance of the federal government and federal law. Reconstruction often credited for the actually implication of the newly passed amendments and the many loopholes that were found around them. The reconstruction era gave rise to new laws that were known as jim crow laws which the South used to walk around the new amendments that were supposed to increase the rights of African-Americans after the Civil War. However, Vornberg argues that the blame should be laid of the judges who interpretations and opinions shaped the reconstruction era not simply the words on the page. The SlaughterHouse case re-established the dominance of the Supreme Court and brought back the court as the sole integrator of the Constitution. The Constitution is written and the branch assigned to interpret this written document is the Judiciary ,Vornberg sees that often critiques of the Reconstruction era are due to the way the Court interpreted the Constitution not an issue solely with the law-makers or the words themselves.
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Couldn’t have put it better myself, Sarah – thanks!
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The era of Reconstruction after the Civil War was a new road paved for the introduction of the 13th, 14th and 15th amendment that were seen to push out the old testament of law in the nation. Although, it is seen that the constitution is a product of social change, there are its limitations, dictated in the text itself. The broad language issued in the amendments showcase the interpretation of the text as being taken out of its original context. The language itself does not dictate that the congress has the power to enforce these rules and leaves it on the shoulders of the states. In this discussion the Wade-Davis bill left the judiciary out of the legislature as t not let the bear enforcement left on the federal courts. This law was a measure to let Southerns back into the Union securing emancipation
The following would occur with congressional hearings where their were no standards to what was said or if testimony was regulated. Law as a science served as legal thought, where data was presented and due to common law enacted accordingly. Unlike the congressional hearings acted as equity courts, acting upon the conscience not relying on the written law or on basis of data. The slaughterhouse case which preserved the rights and privileges of all citizens in the United States, not limited to the citizens of a state.
In Vorenberg’s statement, he illustrates that although the judiciary was left out, the powers within their means were not evaporated. The shortcomings goes to the Supreme Court which should have acted on behalf of the Constitution based upon the states ability to fight. The common law lens forces a lack of understanding of the law as put by Vorenberg in the the reading.
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Vorenberg reached the conclusion that the blame for shortcomings of Reconstruction should be pointed towards the judges, because of their role and their judicial interpretation of the law. According to “Imagining a Different Reconstruction Constitution,” judges focused more on how the Constitutional law aligns with traditions of law, rather than the original legislation, and meaning/origin of Constitutional law text. Since the Supreme Court has been in power as the primary interpreter and maker of Constitutional law, they have promoted common law approach over the political conditions for their rulings. For example, in the cases of White v. Hart and Osborn v. Nicholson, Chief Justice Chase never referred to the Civil War or the foundation of Reconstruction Amendments and Constitutional provisions, instead he proclaimed that the slave contracts opposed “original principles of liberty, justice, and right” which is something that is represented in the English common law (Imagining a Different Reconstruction Constitution, Vorenberg). This conveys that the judges sided with the common law, over judicial reasoning. Additionally, since the federal courts held supremacy when it came to Constitutional law, Vorenberg concluded that they are to be mainly blamed for the shortcomings of Reconstruction, rather than the people and the officials they elected who have made the wording of the law.
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On page 425 Vorenberg writes “In sum, if law helped apply the brakes to Reconstruction, it did so not by the text of the Constitution but rather by judicial interpretation of that text — specifically, a judicial interpretation based on the dominant, common law mode of reasoning and contingent of the rapid reemergence of the federal judiciary as the accepted, ultimate arbiter of the meaning of the law.” I would not normally include such a long quote in a blog post, but I believe that this illustrious sentence encapsulates the core of Vorenberg’s argument. Essentially Vorenberg claims that regardless of the wording of the 14th Amendment the Supreme Court would always have invented the state action doctrine. This means that the failure of reconstruction lies not on the people, or their representatives, but on the judiciary who were more focused on regionalism than on the growth of the nation.
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You’ve captured the essence of the argument nicely here, Adam. One thing I would add is that Vorenberg is not even necessarily accusing the Court of regionalism (although that is the implication): rather, he is suggesting that the Court’s reliance of common law thinking led to a very rigid, historically unrealistic conception of the Reconstruction amendments. This is an interesting thought which we can pursue further in class.
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In his writing, Vorenberg argues that the judiciary assumed power over Congress during the Reconstruction Era. He argues the supreme court took on a more common-law approach to ruling i.e they ruled based on precedent. On the contrary, Congress took historical circumstances into account when deciding rulings. He would’ve much preferred the latter type of ruling. In regard to the quote above, he arrives at such a conclusion because he essentially blames the Court for Reconstruction’s failure. His reasoning is the judiciary couldn’t enforce laws and their rulings were unfairly based on tradition. In doing so, the result was an outlaw of explicitly unjust laws yet they did not actively seek to implement justice.
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Vorenberg believes that “if we are to lay some of the blame for the shortcomings of Reconstruction at the feet of the law, we should be careful to lay it at the feet of judges, not at the feet of the people and their elected officials who created the text of the law.” He arrives at this conclusion by focusing on the Reconstruction amendments, thirteenth, fourteenth, and fifteenth, and how the rise of judicial power led to the Supreme Court being the sole interpreter of defining those amendments. Vorenberg specifically cites the Slaughterhouse case as one that established the Supreme Court’s power over interpreting and creating constitutional law. In the quote above the author is precisely being critical of this exact power given to the Supreme Court. He cites the power they possess as the reason why the phrasing of Reconstruction amendments matter less when the Supreme Court reigns supreme in matters of constitutional law. In other words, the judges are to blame for Reconstruction shortcomings because they interpret the law on a purely objective, abstractive, common law approach. This removes the law from any political context and implications taking away any sense of conscience and emotion. Overall, Vorenberg suggests that start to seriously consider proposals that give legislatures some more judicial power and have it less concentrated in the Supreme Court.
Rumer L.
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Excellent summary here, Rumer – especially toward the end. I guess our question do Vorenberg would be: Do we want the law to consider “conscience and emotion”? We’ll discuss this today and even more on Thursday
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He reached this conclusion after analyzing that the Reconstruction was the doing of the Supreme Court and their decisions.
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I’m a little confused about the article can you explain to me?
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I’ll explain more in class, Samuel – indeed, it was a tricky reading. Have a look at some of the comments here, and my responses to them (Rumer’s above, for instance) to get a sense of the argument. The basic point is that Congress wanted an expansive view of justice in the Reconstruction era, whereas the Court defined the Reconstruction amendments so narrowly as to render them useless.
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Vorenberg places the blame of the shortcomings of Reconstruction on judges since the Supreme Court was the primary interpreter of constitutional law. According to Vorenberg, judges have put emphasis on how the constitutional provision fit into traditions of law. This meant that precedent was significant to common-law jurisprudence. The case of Slaughterhouse was deemed especially important as it was the first Supreme Court decision to issue an interpretation on the Thirteenth and Fourteenth Amendment. The Supreme Court had supreme power in this regard, as they had the final say of the meaning of the Reconstruction Amendments, not the congressional committees nor executive agencies.
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Vorenberg reaches the conclusion of blaming judges for the shortcomings of Reconstruction by bringing up the Ku Klux Klan hearings and others like it, where people could air their grievances in order to help Congress “shape policy.” The Supreme Court “abstracted the constitutional text, imagining it as a neutral set of rules,” as in, they interpreted it to how they saw fit instead of interrogating the text. Judges disregarded the original meaning and interpreted to fit the “traditions of law.” Overall, Congress gave the judges power so they used the constitution to help make their own laws and apply their own interpretation of the text to further agendas like the KKK during the hearings while adopting the common-law method;
“In sum, if law helped apply the brakes to Reconstruction, it did so not by the text of the Constitution but rather by judicial interpretation of that text”
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I’m glad you mentioned the Klan hearings, Sharon. We’ll discuss them more in class – as well as the broader costs and benefits of Congress-led justice. Great comment!
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Vorenberg’s argument is relatively simple. The post-Civil War court system was emotionless and ignored both that the Civil War happened and that the 14th, 15th, and 16th amendments were passed directly in response to slavery and the Civil War. Because of this, the court system was too clinical and little space was given for the naturally occurring difference between people and the specific circumstances, nor did the courts account for the spirit of the law but rather followed a very strict interpretation of the law. Because the courts followed a strict interpretation rather than enforced the letter of the law, Reconstruction era efforts to rebuild the southern states and end the effects of slavery were hindered.
While at first glance, this seems to be a solid argument for the damage caused by the courts. And there very well may be some blame to be laid there. However, the courts are not where laws are crafted and the wording determined. Judicial activism threatens the legitimacy of both the court system and the Congress by allowing for the future usurpation of power through interpretation favorable to the political leanings of the court.
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Great response and critique of Vorenberg here, John. I’ll call on you to elaborate in class, because I think a lot of us have been drinking Vorenberg’s cool-aid. I would, however, suggest that the question of judicial activism here is very complicated: to me, it sounds like Vorenberg wishes the Court got out of the way, above all else. But we’ll discuss this further today and on Thursday
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It is very easy to see the problems that occurred after reconstruction could have been dealt with faster and easier if the judges in the supreme court did not give rulings that perpetrated the violence and racism in the south. The fact that it took nearly 100 years for the nation to move forward and grant African American equal statues as the rest of the population, says a lot about the supreme court and the way they held the country back. in seeing some decisions that were taking place after Reconstruction it is evident the supreme court have had a major role of not helping the country heal.
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Vorenberg had reached this conclusion because he believed that the courts have a part of this. He believes that the people are who in the courts are making the laws, and they are making the laws that benefit them. Vorenberg believes that those who created laws will benefit the supreme courts as well the people who own line. He said we should blame the judges because they make the decisions and not our elected officials. The officials will create the law but the judges will be put the laws in effect.
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“In sum, if law helped apply the brakes to Reconstruction, it did so not
by the text of the Constitution but rather by judicial interpretation of that
text—specifically, a judicial interpretation based on the dominant, common-
law mode of reasoning and contingent on the rapid reemergence of the federal judiciary as the accepted, ultimate arbiter of the meaning of the law.”
Vorenberg makes this claim which leads to the conclusion he comes to. Essentially, he believes that judges are the only people suitable to judge the law. The people that elected those in office and the those in office that create the laws can not be adequate judges of that same law. There is a common sense reason for this, being political bias. In order to avoid this bias, you need an unbiased party, which in this case is the judiciary.
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According to Vorenberg the supreme court through its interpretation of the reconstruction amendments held back reconstuction efforts. I do not believe it was only this court’s interpretation of them that held it back. I believe that President Johnson’s lack of support for reconstruction efforts played a role in this as well. In addition I believe that some members of congress likewise played a role in this anti-reconstruction effort as well. Furthermore I think that It is unfair of Vorenberg to lay the blame exclusively on the supreme court. Since their were more parties involved that did not support reconstruction and acted based on this view that they had.
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Thanks Bryan – you and John D. seem to be in the minority here with criticisms of Vorenberg. You’re absolutely right about Johnson’s role, which we will talk about more on Thursday, and there are a few other critiques that we will go over in class (such as: everything the Court was dealing with was totally new, they were bound to screw up a little!)
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Vorenberg in his article lists that the blame for the shortcomings of the reconstruction should be placed on the hands of the judges of the country and not the people. He comes to this conclusion when he points out that “in the mid-nineteenth century, American jurisprudence followed the practice of treating judicial doctrine as distinct from politics. As a result, judges cared less about the precise wording or original legislative meaning of constitutional provisions than they did about how the constitutional provision fit into traditions of law (Vorenburg,422)”. So basically the judges were just trying to fit the constitution in context to the laws. Using it to their advantage and applying it only when necessary. They did not make the laws based on the constitution but rather, they used the constitution to make some specific laws. Vorenberg points out that the people particularly did not have a blame for the state of the country after the Civil war because unlike the judges, the people were not well informed about the constitution and its legislative power. After reconstruction era, the powers of the federal courts were increased. State cases were later seen to be equal to federal cases and congress had more influence over the nations economical state. So the judges had a many means of exerting their judicial powers.
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In “Imagining a Different Reconstruction Constitution” by Michael Vorenberg, Vorenberg discusses the mentioned hindrances to Reconstruction via the Constitution and the amendments that were passed during that time period (13th, 14th, and 15th). Many claim that the issues are embedded in the text of the Constitution, but he claims that regardless of the wording in the Constitution, it ultimately doesn’t matter. The reason why it does not matter is because “developments, some deeply rooted in American legal culture and some of the unintended consequences of the Civil War, combined to counteract or undermine the potential for far-reaching change that any change of the constitutional text might have made” (418). These developments resulted from the decline in federal judicial power from the onset of Civil War to the subsequent restoration of the federal courts’ authority as interpreter of the Constitution. This restoration was due in part to the Constitution itself, where there were limitations to Congressional power and state legislatures; powers were enumerated and explicitly stated. This constitutional system also empowered the courts as primary interpreter of the Constitution, which is largely the basis for Vorenberg’s claim that if we should lay blame for the obstacles throughout Reconstruction, we should do so with the federal courts rather than the states (the people) and their elected officials (legislatures). The federal courts, with the authority vested in them–despite the lessening of judicial power during the time of Reconstruction–still had the ability to influence and shape how Reconstruction ultimately panned out. However, as Vorenberg touches upon, it would be hard to gauge how instrumental taking a more proactive stance would have been in the outcome of Reconstruction.
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This is a great comment, Ana, and I like that you have concluded with a note of reservation. The gravity and novelty of the challenges during the Reconstruction era was truly vast – could the Court have really solved them?
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He comes to this conclusion by providing three reasons that back up this idea. His first argument is that those who are in power, the judges did not question the intentions the writers of the amendments and that they rarely acknowledged the time period in which the amendments were written which play a role when it comes to understanding the text. This is important as he says that’s important to put blame on the judges, the interpreter not the people who elected the officials. Another reason he provides is that scholars like Peter Hoffer should approach law by looking at through legal theory and context of the history when it was created. And last he states that judges are not the best candidates to interpret and read laws especially when it comes to common law mode and suggest that judicial power should be taken from courts and given more to legislators
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Vorenberg reached his conclusion mainly with the Slaughterhouse case in which this case was seen as a distraction in the constitutional text, conceiving the text to be “as a neutral set of rules”. Vorenbert writes on page 419-420: “The majority opinion of Slaughterhouse may have differed from the minority opinions about such matters as the residual power of the states, but all the opinions agreed implicitly on the principle that, whatever judicial power had been usurped by Congress and the Executive branch during the previous decade or so, the federal judiciary once again was supreme.” In this moment, he pointed out how the U.S. Supreme Court had the final and ultimate authority in interpreting the meaning of the Reconstruction amendments. In truth, law is what helps put a halt to Reconstruction and he came to the realization that judicials are the ones who interpret the text of the Constitution and had the authority to define the meaning of the law in which they see fit. Judges cared less about the accurate wording original intent of the constitutional text/meaning than they did about how it may fit into the American political traditions. American traditions was a “notion that “equality before the law” did not mean the same thing as equitable justice”.
Vorenberg also goes on mentioning Justice Chase in which these two other cases did influence him in his conclusion. White v. Hart and Osborn v. Nicholson cases that Justice Chase argued in, he states that slave contracts had always been against the “original principles of liberty, justice, and right” written down in English common law.
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Vorenberg writes on Page 425: “If we are to lay some of the blame for the shortcomings of Reconstruction at the feet of the law, we should be careful to lay it at the feet of judges, not at the feet of the people and their elected officials who created the text of the law.” Vorenberg reaches this conclusion by discussing how during the time of reconstruction the court began ruling issues and there was the restoration of a once weakened judicial power. The Supreme court was the primary interpreter and maker of constitutional law. The supreme court was also the final arbiter of the meaning of the reconstruction amendments. The problem with the way supreme courts interpreted the constitution (in cases) was that they “imagined law as a science.” Vorenberg mentions that the supreme court “reduced immediate circumstances to data points to be mapped according to rules set by the written record of common-law decisions and state and federal constitutions and statutes.” This was in contrast to ruling by equity, equity courts acted on conscience, and conscience was the ultimate arbiter of equity decisions. Courts of equity had a sense of justice not on the basis of imagined objective, they factored in all the circumstances instead of basing decisions solely on rules set by the written laws. Supreme courts sought equality, not equity. The supreme court had basically all the power so the shortcomings of Reconstruction were mainly their fault, they were the final arbiter of the meaning of the reconstruction amendments.
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Michael Vorenburg begins his piece by explaining the rationale of the position he is writing to critique. He writes that people argue that the language of the Reconstruction amendments of the Constitution were designed to be constricted and limited. That there was the potential to have a far more successful and progressive Reconstruction if it wasn’t for the language of the 13th, 14th, and 15th amendments. Some legal historians go as far to say that Reconstruction never had a chance to begin with, because the Founders wrote the Constitution as a limiting document, versus the English Constitution which granted plenary powers.
Vorenburg writes that the American Legal tradition and consequences of the Civil War is the true reason behind the outcomes of Reconstruction. He begins with Taney’s weakened Supreme Court, a result of the infamous Dred Scott decision and session of the Southern States. The appointment of Chief Justice Chase, Vorenburg argues is the beginning of reconstruction of judicial supremacy. 1864 was the death of the vision of congressional supremacy and in 1873, judicial supremacy was cemented after the Slaughterhouse case. Vorenburg then discusses the differences between congressional and judicial supremacy. Federal judges at the time, thought of law almost as a science. They considered legal issues as a purely rational question, without political/social context. Vorenburg cites testimonies during the hearings regarding the Ku Klux Klan, where victims of the Klan were allowed express their pain during hearings. Federal courts did not follow this model. Vorenburg reached his conclusion, by asking the reader to consider how judicial tradition and judicial supremacy affected the outcome of Reconstruction. He also argues that judges interpret law as an equity mode along with their traditional interpretations. Judges should consider the history, political context, and intention of policies in question.
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Vorenburg reached this conclusion by first making clear that he didn’t believe that the words or wording of the constitution specifically of the new 13th, 14th, and 15th amendments served as a reason for the failure of Reconstruction as most historians would believe. He says that this is because “developments, some deeply rooted in American legal culture and some the unintended consequences of the Civil War, combined to counteract or undermine the potential for far-reaching change that any change of the constitutional text might have made”. He goes on to discuss how the authority of the federal judiciary had originally been weakened due to former justice Roger B. Taney and Abraham Lincoln who ignored the courts decisions. However by 1854 we start to see the federal courts begin to reassert and cement their power thanks to for example the Habeas Corpus Act of 1863, and the slaughterhouse case of 1873. He says that this newfound “restoration of judicial over congressional power made almost irrelevant the precise phrasing of the Reconstruction amendments or of the other clauses of the Constitution relevant to Reconstruction”. This quote demonstrates how courts back then didn’t look too much into the word or origins of the constitution and instead looked into “the constitutional provision fit into traditions of law”. The courts also didn’t really refer to or validate the civil war much during many of their cases which also can seem problematic. The courts sometimes didn’t even refer to the 13th, 14th, and 15th amendments in court cases, which further weakened the impact of the reconstruction era. So in that way, Vorenburg asserts that judges have some blame when it comes to the successful reconstruction era.
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*unsuccessful reconstruction era
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Great summary, Musfika. We will push the question back at Vorenberg in class today: How much can we really blame the Courts?
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Vorenberg argues that Supreme Court justices ought to be blamed for the lack of success that the Reconstruction had. He argues that the Court is very apathetic and reluctant to radical change. Many, according to Vorenberg, have argued that part of the reason the Reconstruction did not accomplish much of its goal was because the Reconstruction amendments were not explicitly clear and allowed states to continue to discriminate against freedman. Vorenberg, however, debunks these arguments by assessing that if the Amendments or anti-slavery laws have been written in a more direct manner, the Justices of the Court would have still ruled against those.
Vorenberg argues that if laws prevented the Reconstruction from fully succeeding, they did not do so by the text of the Constitution, but rather by the judicial interpretation of the text.
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The author reaches that conclusion because federal courts interpret the law and didn’t interrogate the law. The judges didn’t really care about the wording or original legislative meaning for the constitutional provisions but instead worried about how the constitutional provision fit into the tradition of law. In addition, the federal court viewed it as science and tried to remain objective but the congressional committees acted with more equity. Whereas, Congressional hearings added with equitable justice. Furthermore, Congress examines constitutional provisions of only the wording of the constitution. Moreover, followed the common law which was equality before the law. Federal courts tried to eliminate explicit measures and procedures that were unjust. Lastly, the judges are to blame because they did not interrogate the intentions of the author of the amendments and didn’t analyze the transformative quality of the era in which it was written.
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Vorenberg comes to the conclusion that the judges are the ones that should be blamed for reconstruction not panning out as it should be. He comes to this conclusion by saying that the terms of reconstruction were not set through the text of the Constitution, but through the interpretations of the amendments by the Court. The Slaughterhouse case was particularly a case that was significant, because it was the first case in which the Court reviewed the new amendments. They interpreted the 13th and 14th amendment, which essentially set the standard for how the amendments could be used during reconstruction. The amendments themselves did not state that it was only for former slaves and black people, but this interpretation by the court greatly restricted how the amendments could be used. This decision was also a way for the court to gain power in stating what the laws could and could not be used for.
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Vorenberg comes to the conclusion that the judges are the ones that should be blamed for reconstruction not panning out as it should be. He comes to this conclusion by saying that the terms of reconstruction were not set through the text of the Constitution, but through the interpretations of the amendments by the Court. The Slaughterhouse case was particularly a case that was significant, because it was the first case in which the Court reviewed the new amendments. They interpreted the 13th and 14th amendment, which essentially set the standard for how the amendments could be used during reconstruction. The amendments themselves did not state that it was only for former slaves and black people, but this interpretation by the court greatly restricted how the amendments could be used. This decision was also a way for the court to gain power in stating what the laws could and could not be used for.
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